Judge says Ducey must give gyms opportunity to apply for reopening

Maricopa County judge handed Mountainside Fitness a partial victory in its challenge to Gov. Doug Ducey's order closing gyms, ruling that the governor must give them an opportunity to apply for reopening within a week but leaving the order in place.

Judge Timothy Thomason ruled on Tuesday that Ducey is within his rights to order gyms closed to prevent the spread of COVID-19, even while other businesses that arguably pose a greater risk remain open. But the governor has denied those businesses their constitutionally protected due process rights by refusing to provide an avenue for them to petition the governor to allow them to reopen.

"The Court rules only that fitness centers and gyms are Constitutionally entitled to some mechanism for petitioning for reopening. They must have some meaningful opportunity to be heard," Thomason wrote in his ruling.

And while a short shutdown may not result in an irreparable injury for gyms, the "extended shutdown with no end in sight" puts those businesses in danger of being forced to permanently close, the judge said.

"There is very little credible scientific data supporting the notion that fitness centers operating with necessary safety protocols pose a danger or that shutting down well run gyms has a significant public health benefit. Yet, fitness centers and gyms have been closed for weeks without any due process whatsoever," Thomason wrote.

Mountainside Fitness, which has 18 gyms in the Phoenix metro area, filed the lawsuit in response to Ducey's June 29 order closing bars, gyms, movie theaters, water parks and recreational river tubing. That order, which Ducey extended last month, is set to expire on Aug. 12, meaning the ruling may be moot if the governor decides not to renew the mandate.

In a July 27 hearing, the governor's attorneys pointed to a form that the Arizona Department of Health Services was preparing, which is available on the agency's website, that allows gyms to attest that they're following state-mandated health and safety protocols, which they said provided some due process relief for fitness centers that have been forced to close by Ducey's executive order.

However, the judge noted that the form doesn't actually give gyms an opportunity to reopen prior to the expiration of the executive order. It only allows gyms to attest that they'll stay closed during the mandatory shutdown, and requires them to affirm that they'll shut down again if the governor orders, which doesn't provide for any due process until after the executive order has lifted. That would allow Ducey to continually renew his order without ever giving gyms any chance to challenge the mandatory closure.

"While the Form and the requirements have been made available, they provide no process until the mandatory shut down order is lifted. As such, any due process is illusory," Thomason wrote.

Thomason noted Ducey's order doesn't close all businesses or even all businesses deemed nonessential. Only a small number of specific types of businesses must remain closed as a result of the order.

And the judge noted that other types of businesses, such as retail stores, grocery stores and nail salons, are legally operating without much oversight or supervision regarding safety precautions. Meanwhile, Ducey provided little evidence that a fitness center following the state's safety requirements for COVID-19 prevention pose any significant danger.

The judge pointed to statements from several medical and public health experts, including Will Humble, the former director of the Arizona Department of Health Services and an outspoken critic of Ducey's handling of the pandemic, that gyms aren't a significant threat to spread the coronavirus. In a declaration he submitted to the court, Humble said gyms that follow ADHS requirements would pose less of a risk of COVID-19 transmission than grocery and retail stores.

Thomason said there are few safety requirements being enforced against many businesses, such as restaurants and grocery stores, that not only remain open but are often crowded. While most comply with mask and physical distancing requirements, the judge said some aren't following state mandates.

"Indeed, there is not even a State-wide mask policy," Thomason wrote, echoing a frequent criticism of Ducey's decision to allow cities and counties to impose mask mandates, but refusing to enact one for the state at large.

But in a win for Ducey, the judge wrote that the governor doesn't need to justify his decision to close gyms in comparison to other types of businesses, a task that Thomason said may be impossible. The judge acknowledged that Ducey must consider a wide array of factors when deciding which businesses can stay open or must remain closed during a public health emergency.

To justify the closure of gyms, Ducey need only show there was a rational basis for his decision, the judge said, which he did, citing the advice of experts and a White House recommendation that gyms remain closed — though Thomason noted that the governor isn't following other recommendations from the Trump administration.

"The Governor is elected by the people to make these decisions. It is not this Court's function to second-guess the Governor's public health policy decisions, which involve the balancing of many different factors and considerations," Thomason wrote. "The Executive Orders pass the rational basis test, even if barely so."

Patrick Ptak, a spokesman for the governor, said the Ducey administration is reviewing the ruling.

"Our focus is on protecting public health, and working with the private sector on how and when to safely reopen," Ptak said.